Aleman Gonzalez v. Barr, No. 18-16465 (9th Cir. 2020)
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Plaintiffs, representatives of a certified class of aliens who are subject to final orders of removal and are detained pursuant to 8 U.S.C. 1231(a)(6) within the Ninth Circuit, filed suit challenging their prolonged detention without an individualized bond hearing.
The Ninth Circuit affirmed the district court's grant of a preliminary injunction requiring the Government to provide each class member detained for six months or longer with a bond hearing before an immigration judge where the burden is on the Government to justify continued detention. The panel held that plaintiffs are likely to succeed on the merits of their section 1231(a)(6) statutory claim. Although the panel recognized some tension between Diouf v. Napolitano and Jennings v. Rodriguez, it cannot conclude that the decisions are so fundamentally inconsistent that it can no longer apply Diouf II without running afoul of Jennings. Therefore, the panel held that it remains bound by Diouff II. The panel also held that the district court did not err in relying on Diouf II's construction of section 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent.
The panel held that, because Jennings did not invalidate its constitutional due process holding in Singh v. Holder, the district court also properly required the Government to bear a clear and convincing burden of proof at such a bond hearing to justify an alien's continued detention. The panel rejected the Government's remaining challenges and held that the preliminary injunction complies with a proper reading of Clark v. Martinez.
Court Description: Immigration In an action where Plaintiffs—who represent a certified class of aliens who are subject to final orders of removal and are detained pursuant to 8 U.S.C. § 1231(a)(6) within the Ninth Circuit—challenged their prolonged detention without an individualized bond hearing, the panel affirmed the district court’s preliminary injunction requiring the Government to provide each class member detained for six months or longer with a bond hearing before an immigration judge where the burden is on the Government to justify continued detention. Class members are detained under 8 U.S.C. § 1231(a)(6), which authorizes the Government to detain aliens subject to final orders of removal, or reinstated final orders of removal. The class includes only § 1231(a)(6) detainees who have “live claims” of defense against removal before an IJ, the Board of Immigration Appeals, or a circuit court of appeals, such as withholding-only claims, and the class excludes aliens whose release or removal is imminent, as well as aliens who are members of certified classes in other litigations pending in the Ninth Circuit. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court applied the canon of constitutional avoidance to § 1231(a)(6) and held that six months was a presumptively reasonable length of detention and that, after that period, once an alien provides good reason to believe there is no 4 ALEMAN GONZALEZ V. BARR significant likelihood of removal in the reasonably foreseeable future, the Government must provide evidence to rebut that showing. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), a three-judge panel of this court applied the canon to construe § 1231(a)(6) as requiring an individualized bond hearing before an IJ for an alien detained for six months or longer when the alien’s release or removal is not imminent. In this case, the district court issued an injunction requiring the Government to provide class members with hearings after six months of detention, as required by Diouf II. Following this court’s decision in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), which held that due process requires the government to bear the burden of proof in bond hearings, the injunction also requires the Government to bear the burden to justify an alien’s continued detention in the required hearings. On appeal, the Government asserted only that the district court erred by concluding that Plaintiffs are likely to succeed on the merits of their statutory claims; it did not challenge the district court’s decision on the other preliminary injunction factors. The panel held that Plaintiffs are likely to succeed on the merits of their claim that § 1231(a)(6) requires the Government to provide class members with an individualized bond hearing in accordance with Diouf II. In so holding, the panel concluded that Diouf II is not clearly irreconcilable with Jennings v. Rodriguez, 138 S. Ct. 830 (2018), in which the Supreme Court rejected this court’s application of the canon of constitutional avoidance to construe different immigration detention statutes. In Jennings, the Supreme Court explained that the canon comes into play only when a statute is found to be susceptible to more than one construction, and criticized this court for ALEMAN GONZALEZ V. BARR 5 adopting implausible constructions 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) to hold that detained aliens have a statutory right to periodic bond hearings at six months under those provisions. The panel recognized some tension between Diouf II and Jennings but concluded that the decisions are not so fundamentally inconsistent that the court could no longer apply Diouf II in light of the high standard for showing clear irreconcilability. The panel underscored that Jennings repeatedly limited its analysis to the statutory provisions at issue there, and Jennings’s reasoning showed that there are material textual differences between § 1231(a)(6) and the other immigration detention statutes. Further, the panel concluded that because Jennings did not invalidate this court’s constitutional due process holding in Singh, the district court properly required the Government to bear a clear and convincing burden of proof at such bond hearings. Rejecting the Government’s argument that Diouf II’s mode of applying the canon contravened Jennings, the panel explained that Diouf II and Jennings relied on the same principles governing application of the canon. The panel also rejected the Government’s argument that Diouf II improperly “inserted” a bond hearing requirement in contravention of Jennings, reasoning that Diouf II relied on earlier circuit precedent that construed § 1231(a)(6) to permit release on bond without reliance on the canon. The panel also rejected the Government’s argument that the Supreme Court’s treatment of § 1226(a) in Jennings undercut Diouf II, explaining that the Court rejected the imposition of a six-month bond hearing requirement for § 1226(a) but that the Court did not find that the government’s regulations providing for an initial bond hearing for § 1226(a) detainees contravened the statutory text. The panel further reasoned that, unlike any of the 6 ALEMAN GONZALEZ V. BARR detention statutes at issue in Jennings, Zadvydas and Jennings’s discussion of that decision support the conclusion that Diouf II is not clearly irreconcilable with Jennings. The panel found additional support for the conclusion that Diouf II is not clearly irreconcilable with Jennings in the Third Circuit’s decision in Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018), which expressly adopted Diouf II’s construction of § 1231(a)(6) in the wake of Jennings. Finally, the panel rejected the Government’s contention that the Supreme Court already applied the canon to § 1231(a)(6) to prohibit indefinite detention in Zadvydas, and therefore, the district court could not “re-apply” the canon. Likewise, the panel rejected the Government’s argument that Clark v. Martinez, 543 U.S. 371 (2005), stands for the proposition that courts can apply only Zadvydas’s construction of § 1231(a)(6) in all cases, and therefore, the district court erroneously departed from the framework Zadvydas established for federal habeas courts. Dissenting, Judge Fernandez stated that Jennings is clearly irreconcilable with Diouf II’s reasoning, writing that the court in Diouf II did not identify a textual ambiguity in the statute regarding a bond hearing requirement and did not identify any plausible basis in the statutory text for requiring such a hearing. Judge Fernandez also wrote that Diouf II’s reasoning that § 1231(a)(6) detainees were entitled to individualized bond hearings simply because this court had conjured such hearings for § 1226(a) detainees is clearly irreconcilable with Jennings.
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